Late the afternoon of Monday May 18th, the 9th Circuit informed all parties in Nordyke that a judge of the 9th Circuit has has called for a vote to determine whether the case will be reheard en banc. Both sides have 21 days from the 18th to file briefs on whether the case should be heard en banc.

Neither side requested en banc, but the court independently has. This case could go en banc, but it still requires a vote of the active judges after the briefs are in.

Nordyke is the law of the circuit unless and until the 9th votes to take it en banc.

-Gene

DDT

05-19-2009, 12:38 AM

Whew.

Sobriquet

05-19-2009, 12:39 AM

Oh, boy. Here we go.

nick

05-19-2009, 12:46 AM

Never mind, found the answer.

Gray Peterson

05-19-2009, 12:48 AM

How often can they do this? For instance, could they do this 5 years from now, if it doesn't go to SCOTUS?

:confused:

Beatone

05-19-2009, 12:49 AM

A little over Two Weeks....

C.G.

05-19-2009, 12:56 AM

From my limited knowledge that has happened only three times. Gene, what is your estimate?

DDT

05-19-2009, 12:57 AM

Someone in the Circuit had reason to want to see Nordyke solidified?

bigcalidave

05-19-2009, 1:02 AM

I thought this was a bad thing? Didn't we want them to leave it alone?

DDT

05-19-2009, 1:07 AM

It really comes down to who you want making the argument. It has recently become more apparent that 2A incorporation is going en banc and probably beyond. Once that has been all but assured the only thing to do is try and get those most capable in front of the judges with the most winnable case possible.

The question is, is that Nordyke or Gorski1?

TenSeven

05-19-2009, 1:07 AM

All,

...a judge of the 9th Circuit has has called for a vote to determine whether the case will be reheard en banc. Both sides have 21 days from the 18th to file briefs on whether the case should be heard en banc...

Sorry to ask this, but is there a plain-English translation to this. Is the Nordyke decision in trouble??

Joe

05-19-2009, 1:10 AM

>:-|

DDT

05-19-2009, 1:12 AM

A judge on the circuit has asked that the decision be reviewed. This will only happen if the full circuit votes to review the case.

If this happens it is possible that the decision will not hold. But, if the decision is held or strengthened (incorporation plus declaration that fairgrounds aren't "sensitive areas") then the 3 judge panel Gorski is going to argue in front of will be FORCED to accept incorporation.

hoffmang

05-19-2009, 1:19 AM

There was hope that this case would not go en banc. It is not usual for the court to call for en banc when the losing side does not, but it is not unheard of.

En banc has not been granted, but it will move out the time line for a Cert petition. After briefing the case for en banc it is anyones guess on whether it will go en banc. If it does, it would have the detrimental effect of staying the incorporation decision in the 9th. However, that outcome would mean that Mr. Kilmer and the right people will be in charge of the en banc argument - which is a good thing.

-Gene

DDT

05-19-2009, 1:26 AM

If this is under review during the current Gorski1 trial scheduled for June hearings will it be unreviewable by panel whether it is ultimately accepted en bsnc?

gunsmith

05-19-2009, 2:21 AM

If it does, it would have the detrimental effect of staying the incorporation decision in the 9th. However, that outcome would mean that Mr. Kilmer and the right people will be in charge of the en banc argument - which is a good thing.

-Gene

They would rather hear "our" side in Court rather than that Gorski guy?
Or, they want En Banc so they can toss incorporation completely?
if so, no cert for SCOTUS?

Mulay El Raisuli

05-19-2009, 5:45 AM

There was hope that this case would not go en banc. It is not usual for the court to call for en banc when the losing side does not, but it is not unheard of.

En banc has not been granted, but it will move out the time line for a Cert petition. After briefing the case for en banc it is anyones guess on whether it will go en banc. If it does, it would have the detrimental effect of staying the incorporation decision in the 9th. However, that outcome would mean that Mr. Kilmer and the right people will be in charge of the en banc argument - which is a good thing.

-Gene

Can anything be guessed about the matter related to who made the request? That is, is the judge making the request a rabid leftie or rightie?

Related to this, the only problem I see in Nordyke is that the panel decided that the main thrust of Heller was towards "in the home." If we're going to go back in, could this be better addressed? IE, could we get it clarified that Heller's main thrust was NOT "in the home"?

If the 9th circuit does not vote for an en banc hearing, does that mean "incorporation" is law and all 9th circuit judges are bound by it?

CCWFacts

05-19-2009, 6:41 AM

Whew.

I don't really understand what's going on here, but I assume this is a positive development, especially given the situation with Gorski? Also, this is something very very unusual, right, for a judge to request en banc without either of the parties requesting it?

WokMaster1

05-19-2009, 7:14 AM

Now everyone (9th circuit) wants to play because the outcome did not rule in their favor. WTH!!!!:confused:

FYI: En Banc means the entire bench/everyone of the judges in the 9th Circuit. But all 48 of them?????

Gene, any idea what prompted that decision & which judge made the call?

eaglemike

05-19-2009, 7:17 AM

Very interesting!!!

Is there any chance they might attempt to declare that only certain rights are incorporated?

Theseus

05-19-2009, 7:18 AM

I don't know if it is the case, but I am wondering if perhaps they did see the Goski case and the people in the 9th didn't want to have to hear from this guy and perhaps get a bad contra-incorporation ruling from a less favorable panel. . .

I don't know if that is the case, but it could be.

It is a good thing my case doesn't solely rely on Nordyke!

Soldier415

05-19-2009, 7:25 AM

It is hard to keep read up on all the ins and outs of the Nordyke case from out here. Need to hurry up and get back to CA.

RomanDad

05-19-2009, 7:27 AM

Sorry to ask this, but is there a plain-English translation to this. Is the Nordyke decision in trouble??

Let me see if I can sum this up with a sports analogy.....

2 seconds left in the semi-final basketball game. your team is up by three and have the ball. You're walking out of the arena and looking forward to the championship....

Suddenly the ref calls a foul and sends the other team to the free throw line where they sink three to tie the game and send it to overtime.

Is the game lost? Not by a long shot.... Youve got an entire overtime period coming up.... You head back to your seat for more exciting basketball....

But you would rather have already won the game without playing the overtime.

Right now, were somewhere between the ref calling the foul and the game being tied up..... Were not sure there will even BE a hearing....

RomanDad

05-19-2009, 7:29 AM

Now everyone (9th circuit) wants to play because the outcome did not rule in their favor. WTH!!!!:confused:

FYI: En Banc means the entire bench/everyone of the judges in the 9th Circuit. But all 48 of them?????

No.... Just 11 of them.

Legasat

05-19-2009, 7:38 AM

If I understand things correctly, only the full bench of Judges on the 9th (en banc) or SCOTUS can change the decision on Nordyke. If they agree with the decision the panel made, only SCOTUS can change it.

But seeing as this is the 9th Circuit, I do not see this as necessarily a good thing. If they were coming after the Nordyke decision, and thus Heller incorporation, this is how they would do it.

What am I missing?

HowardW56

05-19-2009, 7:39 AM

All,

Late the afternoon of Monday May 18th, the 9th Circuit informed all parties in Nordyke that a judge of the 9th Circuit has has called for a vote to determine whether the case will be reheard en banc. Both sides have 21 days from the 18th to file briefs on whether the case should be heard en banc.

Neither side requested en banc, but the court independently has. This case could go en banc, but it still requires a vote of the active judges after the briefs are in.

Nordyke is the law of the circuit unless and until the 9th votes to take it en banc.

-Gene

S**T!!!

wash

05-19-2009, 7:53 AM

If Nordyke is the law of the circuit until the en banc, this shouldn't change Gorski's strategy in his case, right?

So if Gorski screws up and then the en banc goes against incorporation, we're screwed?

Who is the judge that asked for this?

bulgron

05-19-2009, 7:56 AM

What am I missing?

If the 9th denies incorporation, we drive the case to SCOTUS where I'm 98% sure we'll get incorporation. At that point, it's a done deal. Just takes longer to settle the matter, but the issue is then set in cement which is a real good thing.

The only risk is if the 9th denies incorporation and SCOTUS refuses to hear the case. That would suck for us because it denies us the 2A in California until SCOTUS does take an incorporation case. It has to happen sooner or later. The only question is, when.

I too would like to know which judge called for the en banc hearing. The political leanings of that judge will tell us a lot about what the 9th is thinking about Nordyke and 2A incorporation.

obeygiant

05-19-2009, 7:58 AM

Let me see if I can sum this up with a sports analogy.....

2 seconds left in the semi-final basketball game. your team is up by three and have the ball. You're walking out of the arena and looking forward to the championship....

Suddenly the ref calls a foul and sends the other team to the free throw line where they sink three to tie the game and send it to overtime.

Is the game lost? Not by a long shot.... Youve got an entire overtime period coming up.... You head back to your seat for more exciting basketball....

But you would rather have already won the game without playing the overtime.

Right now, were somewhere between the ref calling the foul and the game being tied up..... Were not sure there will even BE a hearing....

Nice summary!

HowardW56

05-19-2009, 8:15 AM

No.... Just 11 of them.

If the majority of the 9th votes for rehearing, what are the odds of the panel being stacked one way or the other?

bulgron

05-19-2009, 8:23 AM

If the majority of the 9th votes for rehearing, what are the odds of the panel being stacked one way or the other?

Kozinski will definitely be on the panel as he is the chief justice. He's extremely pro-gun.

I also believe that the judges from the original three judge Nordyke panel would sit en banc on this case. If so, that gives us 4 judges that agree the 2A is incorporated.

A simple majority wins in en banc reviews, so all we'll need is two more judges who agree that the 2A is incorporated. It's a crap shoot as to whether we'd get them.

But it isn't worth being excited about unless the 9th agrees to hear Nordyke en banc.

Roadrunner

05-19-2009, 9:02 AM

All,

Late the afternoon of Monday May 18th, the 9th Circuit informed all parties in Nordyke that a judge of the 9th Circuit has has called for a vote to determine whether the case will be reheard en banc. Both sides have 21 days from the 18th to file briefs on whether the case should be heard en banc.

Neither side requested en banc, but the court independently has. This case could go en banc, but it still requires a vote of the active judges after the briefs are in.

Nordyke is the law of the circuit unless and until the 9th votes to take it en banc.

-Gene

One question, why would they?

CCWFacts

05-19-2009, 9:03 AM

Sonofa*****

It sucks for the delay, but ultimately, isn't it good for us to move upwards with this? Don't we want to get a SCOTUS decision on incorporation sooner than later, before someone else (Gorski, Maloony) gets there?

HowardW56

05-19-2009, 9:09 AM

It sucks for the delay, but ultimately, isn't it good for us to move upwards with this? Don't we want to get a SCOTUS decision on incorporation sooner than later, before someone else (Gorski, Maloony) gets there?

We have, or had, a decision that gave us incorporation. There is a risk in an En Banc hearing that it could go the other way, it could happen at SCOTUS too....

garandguy10

05-19-2009, 9:22 AM

Who is the judge that asked for a En Blanc hearing and what is his/her history with gun rights cases and who appointed him/her? IE is him/her a ACLU gun grabber or civil rights activist or what??

fairfaxjim

05-19-2009, 9:26 AM

Someone in the Circuit had reason to want to see Nordyke solidified?

Or nullified? What are the chances that the Obama administration was blown away by the uber liberal 9th being the first to incorporate Heller and found a politically connected justice to try to bring the full "liberalness" of the 9th to bear on getting it turned around? :confused:

Yes, who is the judge that asked for this? Is there a reason why we haven't found out yet who the judge is???? Are they allowed to keep it a secret and just go straight to the panel without saying which judge asked for this??

sorensen440

05-19-2009, 9:30 AM

Did some of you guys think the nordyke incorporation signaled the end of the war ?
The antis are going to fight this tooth and nail in every way they can

I suspect there strategy will be delay tactics in hopes they can have a more favorable (for them not us) Scotus

stag1500

05-19-2009, 9:46 AM

They're going to have to wait a long time for that to happen.

PatriotnMore

05-19-2009, 9:49 AM

Many interesting questions of speculation arise from this decision.

IMO, let it to run its course all the way to the SCOTUS. Again, IMO, I feel the final outcome will be a win for Incorporation. I will sacrifice the delayed gratification of a ruling for now, for the permanent gratification, of a favorable SCOTUS ruling.

I don't really think the the majority of the 9ths Judges, want to take this to the SCOTUS to be overturned on a poor ruling. IMO, I feel we will see a win on an en banc ruling.

Of course some of the speculation could be understood if we know which Judge requested it, and their position on 2A.

On another thought, could this simply be a political stall tactic by the State powers that be?

st.clouds

05-19-2009, 9:51 AM

Did some of you guys think the nordyke incorporation signaled the end of the war ?
The antis are going to fight this tooth and nail in every way they can

I suspect there strategy will be delay tactics in hopes they can have a more favorable (for them not us) Scotus

Then all the more reason to get this over with. We have a favorable SCOTUS, so let them file en banc. There's a 50-50 chance we can get a favorable ruling, and if not we go to SCOTUS where the chances are even better. This may not be true in future, once Obama starts putting his ppl on the bench.

As it stands Nordyke is fairly useless to the average person (no ccw, hi cap mag limit, aw ban), virtually nothing has changed, except that the Nordykes can't hold their show on county ground. Plus we're starting to see that the ruling isn't set in stone, just yet. Moreover there're threats from lone wolves (or maniacs) like Gorski, getting their cases in and setting bad precedents.

A lot of risk involved, true but we don'thave that much to lose, this is as good a time to be aggressive if ever.

nicki

05-19-2009, 11:06 AM

I am going to go out on a limb and perhaps speculate that the 9th cirucit wants to have clarity on the 2nd amendment across the 9th circuit on a host of potential 2nd amendment issues.

Perhaps district court judges throughout the circuit appealed to those on the appeal level for clarity and guidance on this since 2nd amendment issues are now going to come up regularly.

Lets be honest, right now things regarding the 2nd amendment are vague.

Maybe the anti gunners are buying time, either way, higher rulings, either en banc or SCOTUS will have to happen anyway.

We can't have incorporation here in California and not in New York.

Maybe our court wanted to send the New York court a message that they are wrong. We can only hope.

I mean the full en banc carries more weight than just a 3 judge panel.

Nicki

donstarr

05-19-2009, 12:12 PM

Kozinski will definitely be on the panel as he is the chief justice. He's extremely pro-gun.

I also believe that the judges from the original three judge Nordyke panel would sit en banc on this case. If so, that gives us 4 judges that agree the 2A is incorporated.

From the Ninth Circuit's rules...
9th Cir. R. 35-3
LIMITED EN BANC COURT
The en banc court, for each case or group of related cases taken en banc, shall consist of the Chief Judge of this circuit and 10 additional judges to be drawn by lot from the active judges of the Court. In the absence of the Chief Judge, an 11th active judge shall be drawn by lot, and the most senior active judge on the panel shall preside. (Rev. 01/2006, 07/2007)
http://www.ca9.uscourts.gov/rules/FRAP/rules.htm#cr35_3

It looks like the only [semi-]guaranteed justice is Kozinski. ("Semi-" because there's some chance he'll be absent).

DDT

05-19-2009, 12:36 PM

just a couple stirs of the pot.

1) am I correct in assuming that denial of en banc is essentially the same as an affirmation? i.e. a 3 judge panel is would be compelled to accept incorporation.

2) Is it possible that a judge chose to request an en banc hearing in order to change the incorporation basis from selective to P&I? I know that a number of leftists had filed amicus hoping to get P&I rather than extending the farce that is selective incorporation.

USAFTS

05-19-2009, 12:42 PM

...I suspect there strategy will be delay tactics in hopes they can have a more favorable (for them not us) Scotus

I agree. This is probably just another "stall" technique to keep us in limbo until they can pack the SCOTUS or even get us into ICC, at which point we have no Constitution.

bulgron

05-19-2009, 1:01 PM

I agree. This is probably just another "stall" technique to keep us in limbo until they can pack the SCOTUS or even get us into ICC, at which point we have no Constitution.

ICC?

HowardW56

05-19-2009, 1:01 PM

From the Ninth Circuit's rules...
9th Cir. R. 35-3
LIMITED EN BANC COURT
The en banc court, for each case or group of related cases taken en banc, shall consist of the Chief Judge of this circuit and 10 additional judges to be drawn by lot from the active judges of the Court. In the absence of the Chief Judge, an 11th active judge shall be drawn by lot, and the most senior active judge on the panel shall preside. (Rev. 01/2006, 07/2007)
http://www.ca9.uscourts.gov/rules/FRAP/rules.htm#cr35_3

It looks like the only [semi-]guaranteed justice is Kozinski. ("Semi-" because there's some chance he'll be absent).

If it's drawn by lot, the panel can't be stacked (Hopefully)

wash

05-19-2009, 1:25 PM

The circuit court has already been stacked. The judges that we like are just the ones that the anti's haven't been able to get rid of.

hvengel

05-19-2009, 1:26 PM

The panel will be randomly selected other than Kozinski. But overall the circuit has somewhat more liberals than conservatives. So this will be a crap shoot. On the other hand there has to be 25 votes for this to be reviewed and that means that every Democratic appointee other than those on the Nordyke panel will have to vote for review. So even the possibility of a review is a 50/50 type of thing.

7x57

05-19-2009, 1:41 PM

So much for the rumor I heard that the en-banc panel would include the judges on the original panel.

7x57

Bruce

05-19-2009, 1:54 PM

Did some of you guys think the nordyke incorporation signaled the end of the war ?

Hell, there's people here and elsewhere who thought Heller was the end of the war.

pullnshoot25

05-19-2009, 1:55 PM

WOW. FREAKING WOW.

I honestly don't know what to feel right now...

Aegis

05-19-2009, 2:14 PM

The 1A is incorporated, why shouldn't the 2A be? What is the argument against it other than it has to do with guns and many liberal activist judges don't like guns?

To say that the Federal government can't infringe on a person's 2A rights, but states, counties and cities can trample on those rights does not even make sense. That is like saying the Federal government cannot take your right to free speech, but a state or city can. What am I missing here.

nicki

05-19-2009, 2:26 PM

Well, at the risk of starting a flame war, we at least have a idea of the type of crap the anti's will try.

We have some idea based on the great scholar work of Judge Reinhert:rolleyes:

We can thank "Gary Gorski" for that.

Perhaps the "Silveria case" may turn out to be a "blessing" rather than a 'curse".

Nicki

PatriotnMore

05-19-2009, 2:41 PM

The 1A is incorporated, why shouldn't the 2A be? What is the argument against it other than it has to do with guns and many liberal activist judges don't like guns?

To say that the Federal government can't infringe on a person's 2A rights, but states, counties and cities can trample on those rights does not even make sense. That is like saying the Federal government cannot take your right to free speech, but a state or city can. What am I missing here.

Nothing, you hit all the points, IMO.

press1280

05-19-2009, 3:09 PM

Keep in mind the timing of all these cases.
Maloney has until late next month to file with SCOTUS.
The Chicago case in the 7th circuit is on Tuesday.
If en banc goes forward, that's a few months down the road(I assume), with a decision maybe a few months after that.

My guess is any 9th circuit en banc ruling may be mooted. SCOTUS will deny Maloney's appeal, but will hear the Chicago case, win or lose, it's a clear 2A/self-defense case, also involves the P & I route for incorporation. It'll be too good to pass up.
IANAL, but after calling the Nordyke case correctly, I'm calling this one.
SCOTUS incorporation of the Chicago case.

But back to en banc, if they're not going to discuss the "sensitive places" issue, why would either party be interested? Do they have to participate?

rob

05-19-2009, 3:37 PM

Could the Judges find that Nordyke was contradictory and rule that because 2A is incorporated, the Nordykes should have won the case?

Maestro Pistolero

05-19-2009, 4:21 PM

Somebody's objecting to one of two things: that Nordyke was a loss, or that 2A was incorporated.

I'm guessing it was the latter. I guess I should be worried that that incorporation hangs in the balance, but I'm really not. The arguments for it are so strong, and clear, that every challenge merely fortifies our position. Whatever the path, we're on the right side of the mountain.

There seems to be a broad awakening of awareness of the fundamental quality of self defense that was more commonly dismissed even a few years ago. Even the politics of it are shifting in the right direction, and finally the Feinsteins, Immanuels, and McGarthy's seem more and more like the extremists.

The internet is also helping to level the playing field as the emerging source of news, and information that is supplanting even the most venerable newspapers. No longer can the networks lie with the same impunity. The same medium that helped Obama win will be the undoing of his agenda.

Nah, we are going to be fine. En banc, SCOTUS, whatever. Sometimes it takes a painfully long time, but the truth always finds a way to bubble to the surface, eventually.

fairfaxjim

05-19-2009, 4:31 PM

Somebody's objecting to one of two things: that Nordyke was a loss, or that 2A was incorporated.

I'm guessing it was the latter. I guess I should be worried that that incorporation hangs in the balance, but I'm really not. The arguments for it are so strong, and clear, that every challenge merely fortifies our position. Whatever the path, we're on the right side of the mountain.

There seems to be a broad awakening of awareness of the fundamental quality of self defense that was more commonly dismissed even a few years ago. Even the politics of it are shifting in the right direction, and finally the Feinsteins, Immanuels, and McGarthy's seem more and more like the extremists.

The internet is also helping to level the playing field as the emerging source of news, and information that is supplanting even the most venerable newspapers. No longer can the networks lie with the same impunity. The same medium that helped Obama win will be the undoing of his agenda.

Nah, we are going to be fine. En banc, SCOTUS, whatever. Sometimes it takes a painfully long time, but the truth always finds a way to bubble to the surface, eventually.

But, will the larger panel of judges be so eager, particularly in light of the 9th circuit's makeup, to inject Heller and incorporation into the Nordyke case if it does not make any difference to the outcome? I sense that someone on the panel is not happy with that happening with the 3 judge panel.

The truth has already bubbled to the surface, how it will be dealt with by the justice system is still a question mark in most cases.

B Strong

05-19-2009, 4:36 PM

I don't even know what to say, but bohica comes mind immediately.

gunsmith

05-19-2009, 4:36 PM

The 1A is incorporated, why shouldn't the 2A be? What is the argument against it other than it has to do with guns and many liberal activist judges don't like guns?

To say that the Federal government can't infringe on a person's 2A rights, but states, counties and cities can trample on those rights does not even make sense. That is like saying the Federal government cannot take your right to free speech, but a state or city can. What am I missing here.

Welcome to the party, I would say ask 7x57 for his brief history of the whole mess, its a good read-I've got a cranky obsolete laptop or I would link it to you.
BTW, freedom of speech is the right to yell theater in a crowded fire.

vrand

05-19-2009, 4:49 PM

Welcome to the party, I would say ask 7x57 for his brief history of the whole mess, its a good read-I've got a cranky obsolete laptop or I would link it to you.
BTW, freedom of speech is the right to yell theater in a crowded fire.

I am bringing my :tank:

Davidwhitewolf

05-19-2009, 6:18 PM

You all seem to be assuming that it was a liberal judge who called for en banc. How do you know Kozinski isn't a closet Calgunner and, having read this thread (http://www.calguns.net/calgunforum/showthread.php?t=184321), decided to make sure he didn't have to endure Mr. Gorski as lead attorney on incorporation? :thumbsup:

7x57

05-19-2009, 6:29 PM

You all seem to be assuming that it was a liberal judge who called for en banc. How do you know Kozinski isn't a closet Calgunner and, having read this thread (http://www.calguns.net/calgunforum/showthread.php?t=184321), decided to make sure he didn't have to endure Mr. Gorski as lead attorney on incorporation? :thumbsup:

:rofl:

7x57

DDT

05-19-2009, 6:39 PM

Could the Judges find that Nordyke was contradictory and rule that because 2A is incorporated, the Nordykes should have won the case?

The entire case is up for grabs. I guess the worst outcome would be to grant petition to add 2A claim and remand to district court and striking down incorporation. This is probably the greatest risk as we'd have to climb through the whole chain again.

Blackhawk556

05-19-2009, 7:05 PM

I just read the email, those were some powerful and stupid words.

SimpleCountryActuary

05-19-2009, 7:06 PM

Then all the more reason to get this over with. We have a favorable SCOTUS, so let them file en banc. There's a 50-50 chance we can get a favorable ruling, and if not we go to SCOTUS where the chances are even better. This may not be true in future, once Obama starts putting his ppl on the bench.

As it stands Nordyke is fairly useless to the average person (no ccw, hi cap mag limit, aw ban), virtually nothing has changed, except that the Nordykes can't hold their show on county ground. Plus we're starting to see that the ruling isn't set in stone, just yet. Moreover there're threats from lone wolves (or maniacs) like Gorski, getting their cases in and setting bad precedents.

A lot of risk involved, true but we don'thave that much to lose, this is as good a time to be aggressive if ever.

Absolutely. Do it now while we have as many Bush judges as we'll have for years to come.

And sometimes the 9th goes en banc to send a big, fat, hairy message to someone. In Citrus Valley et al v. Commissioner of the IRS it was to kick the IRS in the ... :eek:

Anyway, I hope that's the strategy of the judges behind this. :confused:

hoffmang

05-19-2009, 7:10 PM

Let me see if I can clear some things up.

1. The judge who called for en banc briefing is and shall forever remain anonymous. We will not know the why, but many can speculate.

2. This is a call for briefing. What it does do is slow down a cert petition. What it does not due is gaurantee that this thing goes en banc. When you count up the noses on the "liberal" side of the 9th circuit by reviewing the "liberals" who have made pro-gun statements in the past you see that every single democratic appointee on the 9th that hasn't made a pro-gun statement has to vote for en banc to take this en banc.

3. If it goes en banc, there is some luck to the panel draw. However, this is a pretty evenly divided circuit as I explain at 2 above.

-Gene

DDT

05-19-2009, 7:54 PM

Gene, if this doesn't go en banc will it hold the same stare decisis as a 3 judge panel or, because judges essentially voting against review are voting to affirm does it take on the same level of authority as an en banc opinion?

hoffmang

05-19-2009, 8:33 PM

If Nordyke doesn't go en banc its as if nothing changed.

-Gene

CnCFunFactory

05-19-2009, 10:34 PM

Let me see if I can sum this up with a sports analogy.....

2 seconds left in the semi-final basketball game. your team is up by three and have the ball. You're walking out of the arena and looking forward to the championship....

Suddenly the ref calls a foul and sends the other team to the free throw line where they sink three to tie the game and send it to overtime.

Is the game lost? Not by a long shot.... Youve got an entire overtime period coming up.... You head back to your seat for more exciting basketball....

But you would rather have already won the game without playing the overtime.

Right now, were somewhere between the ref calling the foul and the game being tied up..... Were not sure there will even BE a hearing....

When you put it that way... It kinda makes me wanna put down the ball and go change into my hockey equipment and come out slashing, high sticking and hooking. :43:

Mulay El Raisuli

05-20-2009, 6:16 AM

I am going to go out on a limb and perhaps speculate that the 9th cirucit wants to have clarity on the 2nd amendment across the 9th circuit on a host of potential 2nd amendment issues.

Perhaps district court judges throughout the circuit appealed to those on the appeal level for clarity and guidance on this since 2nd amendment issues are now going to come up regularly.

Lets be honest, right now things regarding the 2nd amendment are vague.

Nicki

That's a real interesting take on things. Because things are just a bit vague because of the Ruling. That anyone can think that a Constitutional Right is limited to just the home is odd, to say the least.

So, I am hoping that you're guess/hope is correct.

The Raisuli

Steve O

05-20-2009, 12:45 PM

What if SCOTUS takes 20 years to decide on the case?
Or just doesn't hear the case at all?

Manic Moran

05-20-2009, 4:25 PM

ICC?

International Criminal Court.

Pay it no mind, the man's been drinking the Kool Aid of the farther right.

NTM

air soft rules!

05-20-2009, 5:34 PM

the Interstate Commerce Commision (ICC) now tries international criminal cases? Just kidding, however,,,isn't buying and selling of firearms interstate commerce? that is/should be even more protected than any other commerce? And the restricting and interference of such trade also not be infringed? Our only instrument to engage in our second amendment rights is the FFL who is engaging in lawful commerce, to restrict the FFL from engaging in a legal and protected trade is violating the constitution, and those who write laws and decrees to restrict the FFL do so by seeking loopholes in the constitution. The founders could have never envisioned CNC production, assembly and manufacturing on such a scale to meet the demand of citizens. Each firearm, was made by a craftsman and by hand, it was a slow process, but worth the wait for pioneers moving west, and for travellers in the east, to be at the ready to defend life and property, the ingredients of liberty. "Shall not be infringed" was the answer to what they could not forsee, that firearms production and innovation caused it to evolve from a craft to an industry, an industry of the people, not the state, so the state must remove itself from the barrier it created, the bloated bureaucracy, by itself, for itself, and of itself. The courts must adhere, and adhere they will, I want no more bullet buttons, and no more rosters, no lists, or meaningless costly bureaucracies.

KCM222

05-20-2009, 10:44 PM

If Nordyke doesn't go en banc its as if nothing changed.

-Gene

"As if nothing ever changed" as in if they don't get enough votes for en banc the problem with Gorski goes away? And they essentially affirm the incorporation ruling?

Does calling for a vote effectively side step the Gorski problem (ie a failed vote affirms incorporation and a successful vote means some of the "Right People" would be in charge instead of Gorski)?

Wishful thinking perhaps?

hoffmang

05-20-2009, 11:04 PM

"As if nothing ever changed" as in if they don't get enough votes for en banc the problem with Gorski goes away? And they essentially affirm the incorporation ruling?

Calling for a vote does not mean that the vote succeeds. If the vote doesn't succeed, then nothing changes. If the vote does succeed, then the existing Nordyke opinion is pulled and can't be relied upon in the 9th Circuit until the en banc panel issues a new opinion.

-Gene

KCM222

05-20-2009, 11:06 PM

If the vote doesn't succeed, then nothing changes.

Ok, I'm going to assume this means that we still have the Gorski problem. Thanks for clearing that up. :)

hoffmang

05-20-2009, 11:15 PM

Ok, I'm going to assume this means that we still have the Gorski problem.

If Nordyke goes en banc, Mehl could not go en banc on the incorporation issue either way a Nordyke en banc would turn out. Mehl might go on some other issue, but it would not have a deleterious effect on other 2A cases.

-Gene

KCM222

05-20-2009, 11:31 PM

Awesome, thanks Gene.

vrand

05-20-2009, 11:52 PM

You all seem to be assuming that it was a liberal judge who called for en banc. How do you know Kozinski isn't a closet Calgunner and, having read this thread (http://www.calguns.net/calgunforum/showthread.php?t=184321), decided to make sure he didn't have to endure Mr. Gorski as lead attorney on incorporation? :thumbsup:

touche :43:

Mulay El Raisuli

05-21-2009, 5:24 AM

the Interstate Commerce Commision (ICC) now tries international criminal cases? Just kidding, however,,,isn't buying and selling of firearms interstate commerce? that is/should be even more protected than any other commerce? And the restricting and interference of such trade also not be infringed? Our only instrument to engage in our second amendment rights is the FFL who is engaging in lawful commerce, to restrict the FFL from engaging in a legal and protected trade is violating the constitution, and those who write laws and decrees to restrict the FFL do so by seeking loopholes in the constitution. The founders could have never envisioned CNC production, assembly and manufacturing on such a scale to meet the demand of citizens. Each firearm, was made by a craftsman and by hand, it was a slow process, but worth the wait for pioneers moving west, and for travellers in the east, to be at the ready to defend life and property, the ingredients of liberty. "Shall not be infringed" was the answer to what they could not forsee, that firearms production and innovation caused it to evolve from a craft to an industry, an industry of the people, not the state, so the state must remove itself from the barrier it created, the bloated bureaucracy, by itself, for itself, and of itself. The courts must adhere, and adhere they will, I want no more bullet buttons, and no more rosters, no lists, or meaningless costly bureaucracies.

All true. However, there's so much anger about the overreaching the Feds have done via the Commerce Clause that none of the Right People are willing to use this tool to help the cause.

The Raisuli

socal2310

05-21-2009, 6:04 AM

All true. However, there's so much anger about the overreaching the Feds have done via the Commerce Clause that none of the Right People are willing to use this tool to help the cause.

The Raisuli

As long as the fiction of Federalism remains intact, I'm disinclined to support cheating just because the other side does so, as long as there is a chance of winning while playing fair.

If they succeed in changing the rules of the game entirely, then I will demand we play just as dirty as the other side. This hasn't happened yet, but it may.

Ryan

Mulay El Raisuli

05-22-2009, 5:56 AM

As long as the fiction of Federalism remains intact, I'm disinclined to support cheating just because the other side does so, as long as there is a chance of winning while playing fair.

If they succeed in changing the rules of the game entirely, then I will demand we play just as dirty as the other side. This hasn't happened yet, but it may.

Ryan

I don't see using the Commerce Clause as 'cheating' in any way, shape or form. The whole purpose of the CC is to prevent one state from interfering with the free flow of goods from one state to another. While there has been MUCH overuse of the CC, that hasn't been the case in re the 2A. Which is really too bad.

Right now, there's an effort in Federal court to slap down the 'safety list' we are burdened with. That's nice. But the Right People waited until, & are using Heller to do so. IMHO, this could (and should) have been done long ago with a suit using the CC as the tool for overturning this POS.

The example used was the pink Glock. Its identical in every way to a regular Glock except for the color. Just as functional, just as safe. Yet, a lady here who wants one can't buy one because Glock won't go through the crap that the PRK imposes on them to make it legal for sale. Now, if the PRK imposed 'tests' & such on Wisconsin cheese before it could be sold here, you can bet there'd be a claim filed with the ICC before you could turn your head. Yet, nothing was done about this equally illegal policy.

Why wait for Heller? Did we need to prove the Constitutionality of handguns to file? I'm told yes. But, the eating of cheese isn't a Constitutional issue. All that need be shown to stop nonsense like that is that unfair & unreasonable burdens are being placed on a legal product. A product that is sold w/o any problems at all in the other 49 states. Use of the CC would work for cheese, & would work for guns as well. More importantly, it would have worked long before now.

The Raisuli

Sobriquet

05-22-2009, 6:08 AM

If Nordyke goes en banc, Mehl could not go en banc on the incorporation issue either way a Nordyke en banc would turn out. Mehl might go on some other issue, but it would not have a deleterious effect on other 2A cases.

-Gene

Gene, my impression is that we had a very favorable 3 judge panel in Nordyke. If they vote to hear it en banc, how does CGF's counsel estimate our chances?

6172crew

05-22-2009, 8:24 AM

So who was the Blue Falcon?

Sounds like what happened with the machine gun case that won then it changed back to being illegal to make a machine gun for personal use only.

RRangel

05-31-2009, 4:56 PM

The 21 day window should be closing on June 8th. I suppose no news is good news.

Maestro Pistolero

05-31-2009, 5:19 PM

The 21 day window should be closing on June 8th. I suppose no news is good news.

I expect we will hear a response to the request for en banc shortly.

HowardW56

05-31-2009, 5:22 PM

The 21 day window should be closing on June 8th. I suppose no news is good news.

I wouldn't expect to hear anything until the 21 Day window is closed... Expect it on the 8th or 9th...

Alphahookups

05-31-2009, 5:38 PM

I wouldn't expect to hear anything until the 21 Day window is closed... Expect it on the 8th or 9th...

By then, is it too late...as in they no longer get en banc if the window has closed?

HowardW56

05-31-2009, 5:45 PM

By then, is it too late...as in they no longer get en banc if the window has closed?

I think you are confusing the window for the judges to vote, with that of the Clerk of the Appellate court sending notices to the Appellant and Appellee, I expect the notices would go out shortly before they are docketed...

Alphahookups

05-31-2009, 5:54 PM

I think you are confusing the window for the judges to vote, with that of the Clerk of the Appellate court sending notices to the Appellant and Appellee, I expect the notices would go out shortly before they are docketed...

I expect both sides will file their briefs on June 8. I'll post both as soon as they are filed.

-Gene

DDT

05-31-2009, 8:34 PM

I think the 21 days was for responses from both sides, then the judges get 14 days to decide and vote.

Maestro Pistolero

05-31-2009, 8:40 PM

I expect both sides will file their briefs on June 8. I'll post both as soon as they are filed.

Wiki: . . . on May 18, 2009 an anonymous Judge of the Ninth Circuit Court of Appeals called for briefing from both sides on whether the case should go en banc.

I didn't realize the litigants were still part of the process. What more could the county likely add to their filings, vis a vi the en banc request? After all, they won, unless they feel that they have a dog in the incorporation fight.

I can imagine the Nordykes will want to say something to improve the ruling, but it would be a surprise to me if the judge's reason for the en banc request, was dissatisfaction with the gunshow part of the ruling. Given the rarity of an en banc request, it almost certainly is about incorporation.

So mysterious.

sierratangofoxtrotunion

06-01-2009, 10:03 AM

One thing I've picked up along the way with the en banc process is that it's there to double check a ruling in a case. The 9th is very large, and has a lot of judges on it. If one case is messy, that messy ruling screws with all related cases for all the other judges from then out.

We already have two cases in the 9th that will be using the Nordyke decision. I wouldn't be surprised that there are some judges who want to make sure all the ts are crossed and is dotted before they get hit with this next round of cases.

I don't see an en banc request as a bad thing, only an uncertain thing. I think the basketball analogy above fits very well.

HowardW56

06-01-2009, 1:52 PM

I think the 21 days was for responses from both sides, then the judges get 14 days to decide and vote.

I think you're right.,....

Untamed1972

06-01-2009, 2:07 PM

Is it possible that if it went en banc that the incorporation part could be kept but the ruling to ban gun shows on public property could be overturned, turning Nordyke into a total win all the way around?

gazzavc

06-01-2009, 2:20 PM

Is it possible that if it went en banc that the incorporation part could be kept but the ruling to ban gun shows on public property could be overturned, turning Nordyke into a total win all the way around?

Yes and monkeys could fly out of my bottom. But don't count on it.

DDT

06-01-2009, 3:40 PM

Is it possible that if it went en banc that the incorporation part could be kept but the ruling to ban gun shows on public property could be overturned, turning Nordyke into a total win all the way around?

It is possible. However; if they take the case en banc it is NOT BINDING precedence during review. So, if it is taken en banc all of CGF's other cases are going to want to wait until we have incorporation again in this district.

hoffmang

06-01-2009, 3:41 PM

I've gotten some updated information. There is no constraint on when the en banc vote will take place. In a previous case that went en banc for Mr. Kilmer, the court voted and parties were informed that the case was going en banc 6 months after briefing was complete. I've updated the wiki to reflect that.

-Gene

KCM222

06-01-2009, 3:50 PM

I've gotten some updated information. There is no constraint on when the en banc vote will take place. In a previous case that went en banc for Mr. Kilmer, the court voted and parties were informed that the case was going en banc 6 months after briefing was complete. I've updated the wiki to reflect that.

-Gene

Is this ever used as a tool to affect other cases?

IE, hypothetically, if the judges in the 9th were confident they could achieve a successful en banc vote they could resolve a vote at a very inopportune time for the Sykes case and put incorporation into limbo.

:TFH:

Alphahookups

06-01-2009, 4:16 PM

Is this ever used as a tool to affect other cases?

IE, hypothetically, if the judges in the 9th were confident they could achieve a successful en banc vote they could resolve a vote at a very inopportune time for the Sykes case and put incorporation into limbo.

:TFH:

...I had a question along the same lines:

What if the took so long that another case(Sykes or Gorski's) was already ruled upon. Does it automatically make the other ruling invalid?

1JimMarch

06-01-2009, 7:22 PM

Are we certain that with en banc being considered, the Nordyke incorporation precedent is "on hold"?

hoffmang

06-01-2009, 7:38 PM

If the court votes to take the case en banc, then the Nordyke opinion is withdrawn and can not be cited in the 9th Circuit. Other cases will have to proceed on the merits and are free to make a direct 14A incorporation claim, but that will be significantly harder.

-Gene

1JimMarch

06-01-2009, 8:12 PM

So RIGHT THIS SECOND Nordyke is good law?

JDoe

06-01-2009, 8:15 PM

So RIGHT THIS SECOND Nordyke is good law?

Post #1

All,

Late the afternoon of Monday May 18th, the 9th Circuit informed all parties in Nordyke that a judge of the 9th Circuit has has called for a vote to determine whether the case will be reheard en banc. Both sides have 21 days from the 18th to file briefs on whether the case should be heard en banc.

Neither side requested en banc, but the court independently has. This case could go en banc, but it still requires a vote of the active judges after the briefs are in.

Nordyke is the law of the circuit unless and until the 9th votes to take it en banc.

-Gene

HondaMasterTech

06-01-2009, 8:17 PM

Not "funny, ha ha"...

Kid Stanislaus

06-01-2009, 8:18 PM

So RIGHT THIS SECOND Nordyke is good law?

I'd say that right this second our apple cart is in grave danger of being upset.:mad:

G17GUY

06-01-2009, 9:40 PM

So Sykes case will possibly go dormant over this?

hoffmang

06-01-2009, 9:41 PM

So Sykes case will possibly go dormant over this?

There is risk of a delay if Nordyke goes en banc, but it would only be delay.

-Gene

DDT

06-01-2009, 9:57 PM

I've gotten some updated information. There is no constraint on when the en banc vote will take place. In a previous case that went en banc for Mr. Kilmer, the court voted and parties were informed that the case was going en banc 6 months after briefing was complete. I've updated the wiki to reflect that.

-Gene

I would like to know more about this. I am fairly certain that FRAP sets a limited time for the vote to take place once a vote is called for. In this case a judge called for a vote to start the whole process and that should start the 14 day clock as soon as both parties file their briefs.

I think the "no time limit" is only for a call for a vote, not the actual vote itself once called for.

This is the bit from FRAP that I thought would apply since a judge has already called for an en banc consideration:

any judge has 14 days to call for en banc consideration, whereupon a vote will be taken. If no judge requests or gives notice of an intention to request en banc consideration...

DDT

06-01-2009, 10:00 PM

There is risk of a delay if Nordyke goes en banc, but it would only be delay.

-Gene

With the risk of an extended initial en banc hearing and the possibility that they will call for a full court hearing after an en banc and really drag this out is there any intention on the part of the Nordykes to petition for SCOTUS cert?

If SCOTUS accepts the case does that nullify the en banc process? If SCOTUS accepts the case does it still stand "as-is" until they publish an opinion or is it withdrawn as in the case of en banc reconsideration?

hoffmang

06-01-2009, 10:01 PM

I would like to know more about this. I am fairly certain that FRAP sets a limited time for the vote to take place once a vote is called for. In this case a judge called for a vote to start the whole process and that should start the 14 day clock as soon as both parties file their briefs.

I think the "no time limit" is only for a call for a vote, not the actual vote itself once called for.

This is the bit from FRAP that I thought would apply since a judge has already called for an en banc consideration:

That's in the FRCP for the case of when a litigant appeals. No litigant appealed here.

-Gene

DDT

06-01-2009, 10:14 PM

That's in the FRCP for the case of when a litigant appeals. No litigant appealed here.

-Gene

Can you point me to the appropriate court rules for when a judge calls for an en banc consideration? I assumed (I know, dangerous) that a judge calling for consideration is the same whether the impetus is a petition of the judges own volition.

hoffmang

06-01-2009, 10:31 PM

Can you point me to the appropriate court rules for when a judge calls for an en banc consideration? I assumed (I know, dangerous) that a judge calling for consideration is the same whether the impetus is a petition of the judges own volition.

There are no rules that anyone I know can find about en banc called sua sponte. The rules are here (http://www.ca9.uscourts.gov/rules/FRAP/Rules_TOC.htm).

-Gene

gd-bh

06-02-2009, 5:37 AM

Gene...so if it seems the bad guys are using a stall tactic, would it be prudent for Nordykes to ask for an en banc, simply to start that 14 day clock ticking and take away the ability for the delay?

GuyW

06-02-2009, 7:37 AM

Gene...so if it seems the bad guys are using a stall tactic, would it be prudent for Nordykes to ask for an en banc, simply to start that 14 day clock ticking and take away the ability for the delay?

(I'm not Gene, but) I think the clock already run out on that option...and my guess is, its probably not a great tactic in this case.
.

hoffmang

06-02-2009, 10:47 PM

Can you point me to the appropriate court rules for when a judge calls for an en banc consideration? I assumed (I know, dangerous) that a judge calling for consideration is the same whether the impetus is a petition of the judges own volition.

DDT,

I did some more digging today and I and my source were incorrect and you were far closer to right.

In the 9th Circuit's General Orders, there is more detail on a Sua Sponte en banc (http://www.ca9.uscourts.gov/rules/General%20Orders/General%20Orders.htm#TOC4_20) call.

It looks like from the General Orders (http://www.ca9.uscourts.gov/rules/General%20Orders/General%20Orders.htm#TOC2_39) that once the parties file briefs on June 8, the Court has 21 days to issue memos internally. Once that 21 days expires, there is 14 days of voting. Looking at the calendar, that would mean we should hear the outcome of the en banc vote on July 13.

-Gene

DDT

06-02-2009, 10:50 PM

DDT,

I did some more digging today and I and my source were incorrect and you were far closer to right.

In the 9th Circuit's General Orders, there is more detail on a Sua Sponte en banc (http://www.ca9.uscourts.gov/rules/General%20Orders/General%20Orders.htm#TOC4_20) call.

It looks like from the General Orders (http://www.ca9.uscourts.gov/rules/General%20Orders/General%20Orders.htm#TOC2_39) that once the parties file briefs on June 8, the Court has 21 days to issue memos internally. Once that 21 days expires, there is 14 days of voting. Looking at the calendar, that would mean we should hear the outcome of the en banc vote on July 13.

-Gene

Excellent news to be sure.

Librarian

06-03-2009, 8:37 AM

It looks like from the General Orders that once the parties file briefs on June 8, the Court has 21 days to issue memos internally. Once that 21 days expires, there is 14 days of voting. Looking at the calendar, that would mean we should hear the outcome of the en banc vote on July 13.

Things keep getting pushed back. Presuming en banc is granted, oral arguments about 90 days later - October - and up to 9 months for the opinion - July 2010. I wouldn't look to the en banc opinion to appear in a week as we got from the 7th Circuit.

bulgron

06-03-2009, 10:05 AM

Things keep getting pushed back. Presuming en banc is granted, oral arguments about 90 days later - October - and up to 9 months for the opinion - July 2010. I wouldn't look to the en banc opinion to appear in a week as we got from the 7th Circuit.

I'm now betting that SCOTUS resolves the incorporation issue before the 9th finishes diddling around with it.

The 9th hates guns and will do everything it can to delay the inevitable here.

GMONEY

06-03-2009, 10:21 AM

this is all very interesting... I wonder if this would have happened under the last president. Some how I think Barry has his hands in this...

bulgron

06-03-2009, 11:15 AM

this is all very interesting... I wonder if this would have happened under the last president. Some how I think Barry has his hands in this...

Naw. The 9th was going to do this regardless of the current president. That die was cast when the 9th became the most liberal federal court in the country.

truthseeker

06-03-2009, 11:25 AM

Is it possible that the en banc was called because they had collaborated with the 7th District about how the 7th was going to judge their case in Chicago, thus NOT incorporating and letting it go to SCOTUS to rule on that case (stalling tactic)?

Sobriquet

06-03-2009, 11:43 AM

Is it possible that the en banc was called because they had collaborated with the 7th District about how the 7th was going to judge their case in Chicago, thus NOT incorporating and letting it go to SCOTUS to rule on that case (stalling tactic)?

Not sure I understand your logic there....?

7x57

06-03-2009, 12:04 PM

this is all very interesting... I wonder if this would have happened under the last president. Some how I think Barry has his hands in this...

A shared worldview and ideology does not a conspiracy make.

7x57

KCM222

06-03-2009, 12:57 PM

A shared worldview and ideology does not a conspiracy make.

7x57

7xYoda is right, this would have happened regardless of who was in charge of the executive.